Teche Lines, Inc. v. Pope

• Decision Date: 23 March 1936
• Docket Number: 32167
• Citation: 166 So. 539,175 Miss. 393
• Court: Mississippi Supreme Court
• Parties: TECHE LINES, INC., v. POPE

166 So. 539

175 Miss. 393

TECHE LINES, INC., v. POPE

No. 32167

Supreme Court of Mississippi

March 23, 1936

Division B

Suggestion Of Error Overruled, April 20, 1936.

APPEAL from circuit court of Jackson county HON. W. A. WHITE, Judge.

Action by Mrs. Rosa Lee Pope against the Teche Lines, Incorporated and another. From a judgment for plaintiff, named defendant appeals, Affirmed.

Affirmed.

Porteous, Johnson & Humphreys, of New Orleans, La., and White & Morse, of Gulfport, for appellant.

If this were a suit between the driver of the bus, or the owner of the bus, and the railway, and the railway should plead section 6124, Code of 1930 (Stop Statute), then it would be a question for the jury as to whether failure to stop was the sole or proximate cause.

G. & S. I. v. Saucier, 139 Miss. 497; N. O. & N. E. R. Co. v. Hegwood, 155 Miss. 104.

This statute does not help appellee, as against appellant. The same statute provides the prima fame statute applies. This alone shows the case should have gone to the jury as to the railway, i. e., whether its locomotive blocking the highway under the unusual conditions, was the sole or proximate cause of the accident, resulting in injury to appellee.

The court, of course, is familiar with the bell or whistle statute, section 6125, Code of 1930. While appellee was suing the railway, note please that appellee made every effort to prove the bell was ringing. She sought to show the engine was lighted. The attorneys for the railway company took no part in the case except to move for a peremptory.

There was a total failure to prove the bus driver violated sections 5569 or 5571, Code of 1930, or any other statute.

As to whether it was negligence or not for the railway to block the crossing, we state the books are full of cases on this subject, but we need only look to our own court.

G. M. & N. R. R. Co. v. Holifield, 152 Miss. 674; G. M. & N. R;. Co. v. Kennard, 164 Miss. 380; Spillman v. G. & S. I. R. R. Co., 163 So. 445.

All these cases recognize the rule it is not negligence to block the crossing for a reasonably necessary time, in the absence of "peculiar environment" meaning peculiar conditions of hazard, which reasonable prudence should have reasonably foreseen would likely lead to collision, notwithstanding ordinary care on part of driver of motor car approaching crossing. Can it be doubted that the record shows without conflict there were peculiar and most unusual conditions.

Under no circumstances could the appellant be punished in this case. The driver was doing all he could under trying circumstances. The declaration, we respectfully submit, with deference and great respect for learned counsel opposing us, is not broad enough to warrant it. The strongest allegation is that the act of the driver was negligent, reckless and unlawful. There is no allegation of wilfullness or a gross and careless disregard for the rights of appellee; without pleading, proof is impotent. But when we come to the proof we find the utmost care, careful handling of the bus.

Punitive damages are punishing damages.

Neal v. Newburger, 154 Miss. 691.

There must be malice, fraud, oppression, wilful wrong, or gross negligence.

Y. & M. V. R. R. v. Mullen, 158 Miss. 774.

Unless there is a showing of wilfulness, oppression or wilful disregard of rights, an instruction on punitive damages should not be given.

Telephone Co. v. Allen, 89 Miss. 837; Telephone Co, v. Baker, 85 Miss. 486; R. R. v. Marlett, 78 Miss. 872; So. R. R. v. Kendrick, 40 Miss. 374; R. R. v. Whitfield, 44 Miss. 466; R. R. v. Statham, 42 Miss. 607; Y. & M. V. R. R. v. May, 104 Miss. 422; R. R. v. Williams, 87 Miss. 344; Telephone Co. v. Teague, 117 Miss. 401; Y. & M. V. R. R. v. Hardie, 55 So. 967; City of Biloxi v. Maloney, 74 Miss. 738; R. R. Co. v. Scurr, 59 Miss. 465; I. C. R. R. v. Dodds, 53 So. q; Mc. Donald v. Moore, 159 Miss. 326; Bounds v. Watts, 159 Miss. 307.

The verdict is excessive.

Carver v. City of Jackson, 82 Miss. 583; R. R. v. Wallace, 91 Miss. 492; Pullman Co. v. Anderson, 119 Miss. 791; Payne v. McNeely, 123 Miss. 248; Woolworth v. Volking, 135 Miss. 410; Teche Co. v. Bateman, 162 Miss. 404; Cotton Mills v. Oliver, 153 Miss. 362; Y. & M. V. R. R. v. Daily, 157 Miss. 3; N. O. & N. E. R. R. v. Jackson, 145 Miss. 702; Shell Petroleum Co. v. Kennedy, 167 Miss. 305; Allen v. Friedman, 156 Miss. 77; Kress v. Sharp, 156. Miss. 693.

On the question of intervening cause, mad also cases where the highway was blocked, see the very recent cases of Richmond v. Superior Oil Co., 172 Miss. 407; Public Service Co. v. Watts, 168 Miss. 235; Soloman v. Continental Baking Co., 172 Miss. 391.

Eaton & Eaton, of Gulfport, for appellee.

A carrier of passengers owes the duty of exercising the highest degree of care and diligence.

Y. & M. V. R. R. Co. v. Hawkins, 163 Miss. 505, 140 So. 873; L. & N. R. R. Co. v. Compiretto, 137 Miss. 766, 102 So. 837.

A driver has no right to assume that the road is clear but must under all circumstances and at all times have vigilance and must anticipate and expect the presence of others.

Flynt v. Fondren, 122 Miss. 248, 84 So. 188; section 5571, Code of 1930.

If the conditions complained of by appellant were unusual, they did nothing more than impose on the driver a higher degree of care. They did not relieve him of the duty of operating the bus so that he could stop within the range of his lights.

Frazier v. Hull, 157 Miss. 303, 127 So. 775.

A person injured by the negligence of another is not required to submit to a serious major surgical operation for the correction of an otherwise permanent injury if such operation might not be successful and might possibly result in death.

Liberty Life Assurance Society v. Downs, 112 So. 485; 11 A. L. R. 230; 17 C. J. 779.

It was proper to allow punitive damages if the jury found that the defendant operated its car at a dangerous, reckless and unlawful rate of speed.

Galtney v. Wood, 149 Miss. 56, 115 So. 117.

The rule in this state is well settled that the imposition of punitive damages is a matter within the discretion of the jury. The jury may or may not award exemplary damages where the evidence justifies such infliction.

Southeastern Express Co. v. Thompson, 139 Miss. 344, 104 So. 80; I. C. R. R. Co. v. Cole, 113 Miss. 896, 74 So. 766; Virginia Beach Bus Line v. Campbell, 73 F.2d 97; Godfrey v. Meridian Light & Ry. Co., 101 Miss. 565, 58 So. 543; Bradford v. Taylor, 85 Miss. 409, 37 So. 812.

Since the appellee was wholly innocent of any negligence and since under the trial court's point of view the railroad company was guilty of no negligence, it would have been highly improper to say to the jury that the presence of the locomotive on the track could have constituted a proximate cause which would shield appellant from liability.

Spillman v. G. & S. I. R. R. Co., 163 So, 445; G. M. & N. R. R. Co. v. Kennard, 164 Miss. 330, 145, So. 110; G. M. & N. R. R. Co. v. Holifield, 162 Miss. 674, 120 So. 750.

The judgment in our opinion is smaller than it should have been and instead of being excessive is inadequate.

Masonite Corp. v. Lockridge, 163 Miss. 364, 140 So. 223; Miss. Ice & Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164; St. Louis-San Francisco Ry. v. Bridges, 131 So. 99, 159 Miss. 268: Pan-American Petroleum Corp. v. Pate, 138 So. 349, 162 Miss. 638; S. H. Kress & Co. v. Sharp, 126 So. 650, 156 Miss. 693. 131 So. 412, 159 Miss. 283; Y. & M. V. R. Co v. Daily, 157 Miss. 3, 127 So. 575; Cotton Mill Products Co. v. Oliver. 121 So. 111, 153 Miss. 362: I. C. R. Co. v. Williams, 110 So. 510, 144 Miss. 804; N. O. & N. E. R. Co. v. Jackson, 110 So. 586, 145 Miss. 702; Yazoo City v. Loggins, 110 So. 833, 145 Miss. 793; St. Louis & S. F. Ry. v. Hays, 101 So. 548, 136 Miss. 701; A. & V. Ry. v. Dennis, 91 So. 4. 128 Miss. 298; Miss. Cent. R. Co. v. Lott, 80 So. 277, 118 Miss. 816; Y. & M. V. R. v. Dees, 83 So. 613, 121 Miss. 439.

Argued orally by Walter A. White and Carter F. Johnson, Jr., for appellant, and by B. E. Eaton, Sr., for appellee.

OPINION

Griffith, J.

Appellant is a common carrier of passengers by bus, and, among others, operates a line along the coast upon what is known as highway No. 90. At a community in Jackson county known as Kreole, this highway crosses the railroad tracks of file Mississippi Export Railroad Company. About four forty-five o clock on the morning of July 25, 1935, a passenger bus of appellant was traveling eastwardly at the point mentioned, the bus being driven by one Berwick. The vehicle was about thirty feet long, weighed approximately fen tons. and had a seating capacity of thirty-nine passengers. A torrential rain was falling so that tho bus driver could not see further than about sixty feet ahead. Nevertheless. when the driver reached the right of way of the railroad, and approached the railroad grade crossing. he was proceeding at the rate of twenty-five miles an hour and did not stop or slow down, and made no effort to do so until within less than fen feet of a locomotive of the railroad company, which happened at the moment to be in the occupancy of the crossing. The result was a disastrous collision, and a serious and permanent injury to appellee who was a passenger on the bus.

The above facts are substantially undisputed, so that applying section 6124, Code 1930, the plaintiff, appellee, was entitled to a peremptory instruction. That statute, so far as applicable to this and similar cases, reads as follows "It shall be unlawful for any person to drive or propel any automobile or automobile truck or other motor driven vehicle upon any railroad track at a public highway or municipal street intersecting such railroad at grade crossing without first stopping at a distance...